Romano v. Warden, FCI Fairton (Amicus)

In June 2022, the Federal Bureau of Prisons (“BOP”) released Michael Romano to home confinement pursuant to the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. Mr. Romano spent nearly one month living at home, reconnecting with his loved ones, and reintegrating into his community. Then in July 2022—absent any alleged wrongdoing—BOP suddenly revoked Mr. Romano’s home confinement and re-imprisoned him. Since then, Mr. Romano has spent over two years in prison, without any alleged violation or opportunity to explain that revocation is unwarranted.

In May 2023, Mr. Romano filed a habeas corpus petition in the District of New Jersey arguing that revoking his home confinement without due process violates his constitutional rights. BOP contends that (1) people lack a protectable liberty interest in their home confinement placement and (2) in any event, BOP cannot restore Mr. Romano to home confinement because the CARES Act has expired. On December 13, 2024, the parties filed cross motions for summary judgment.

On December 19, 2024, the ACLU and ACLU of New Jersey filed an amicus brief. The brief explains that people on home confinement have a liberty interest akin to people on parole and probation. Thus, as multiple district courts have held, BOP cannot revoke home confinement without the level of due process the Supreme Court required to revoke parole in Morrissey v. Brewer, 408 U.S. 471 (1972) and analogous forms of conditional release in Young v. Harper, 520 U.S. 143 (1997).

Further, the brief explains that the CARES Act’s expiration only prohibits BOP from releasing new people to home confinement; it has no bearing on BOP’s authority to restore people already on home confinement to remedy an erroneous revocation. Moreover, the government’s view would permit untenable results: due process violations without a meaningful remedy. If this view prevails, BOP could arbitrarily re-imprison anyone and everyone on home confinement and, even if federal courts found the revocations unconstitutional, courts would be powerless to restore people to their lawful home confinement status.